Mr. X & the Department of Justice, Equality and Law Reform

I wish to refer to the application by your client [Mr X] for a review, by the Information Commissioner, of a decision by the Department of Justice, Equality and Law Reform on his request for records. I must apologise for the delay in dealing with the case which was due to the high level of appeals before the Commissioner at this time.

Background

The Department's original decision was made in two parts. On 30th August 2006, the Department refused your client access to records held by Prisons Operations Division on the basis of section 10(1)(c) of the FOI Act; and on 31st August 2006, it stated in a decision letter that it had decided to release to your client all relevant records held by Prisons Medical Division. You did not appeal the decision on records held at Prisons Medical Division. Accordingly, as stated in a letter from this Office to you dated 16th February 2007, that part of the decision does not form part of the Commissioner's review.

During the course of the Commissioner's review, this Office was advised that there was a further file on your client at [ ] Prison which had not been discovered previously. The Department failed to locate this file and now relies on section 10(1)(a) of the FOI Act to refuse access to it.

Scope
The Commissioner's review does not include the Department's decision on records held at Prisons Medical Division.

In June of this year this Office wrote to the Department advising it of our preliminary view that its reliance on section 10(1)(c) of the FOI Act to refuse you access to records was not justified. The Department was invited to reconsider its position. Following correspondence with this Office the Department no longer relied on section 10(1)(c) to refuse you access to records and instead released some documents to you in their entirety, part-granted access to some, and refused access to others. The basis on which access to certain records was refused is set out in the Department's letter to you dated 4th September 2007. The decision in this letter will be reviewed by the Commissioner.

The Commissioner will review the decision to refuse, on the basis of section 10(1)(a) of the FOI Act, access to a file at [ ] Prison which relates to a sentence served by your client from [ ]to [ ], and which had not been declared previously as coming within the scope of your request.

Findings

Documents numbered 10 (1,3); 16(1); and 19(2)
Documents numbered 10 (1,3); 16(1); and 19(2) were refused on the basis of section 23(1)(a)(v) of the FOI Act. Section 23(1)(a)(v) of the FOI Act provides that a public body may refuse to grant a request if it considers that access to the record sought could: "reasonably be expected to (a) prejudice or impair (v) the security of a penal institution". Records 10(1), 10(3) and 16(1) are "Prisoner Profile" forms. The information which has been refused to your client is personal information about his particular profile as a prisoner.

Before I set out my findings on these records I wish to state that, under section 34(12)(b) of the FOI Act, a decision to refuse to grant access to a record is presumed not to have been justified unless it is shown to the satisfaction of the Commissioner that the decision was justified. This provision has the effect of placing the burden of proof in this matter on the Department in its decision to refuse access to the records listed above. I must also point out that, in carrying out this review, I am required by section 43(3) of the FOI Act to take all reasonable precautions to prevent disclosure of information that is contained in a record that the public body has found to be exempt. This applies regardless of whether I decide to release some or all of the information withheld as I could prejudice the right of an affected party to appeal my decision to the High Court on a point of law if I were to reveal any information that the Department has withheld.

Having reviewed the records I find that there is little information of a security nature on the forms that your client would not be aware of. Whereas this may not always be the case on such forms, I find that it is the case with these particular records. This Office has previously rejected a claim by the Department for a class exemption in respect of these forms but has stated that each case will be looked at individually. Having considered the matter I am satisfied that there is nothing in the records which if disclosed could reasonably be expected to prejudice or impair the security of a penal institution. I therefore find that section 23(1)(a)(v) does not apply to them. No other exemption has been claimed by the Department and I find that no other exemption applies.

Documents numbered 19(3) and 21(1,2)
Documents numbered 19(3) and 21(1,2) were part-granted - the deleted material is the names of officials, and is refused on the basis of Section 23(1)(a)(iii) and 21(1)(b) of the FOI Act. The Department has advised this Office that it is its policy not to disclose the identities of officials working in the Prison Operations Directorate as it could compromise their security and that this policy has been in place for a substantial period. I am advised that while the names of certain officials have been published in the State Directory, the Divisions that they work in has never been published. I accept that the Department operates a policy of not disclosing the names of officials in the Prison Operations Directorate in view of the sensitivity of the work generally carried out by that Division and that the purpose of such a policy is to ensure the safety and security of the officials of the Division. I am also satisfied that the disclosure of the identities of the officials named in the records at issue in this case could reasonably be expected to prejudice or impair that policy or system. I find, therefore, that section 23(1)(a)(iii) applies to the names/signatures/initials of the officials contained in the records. Section 23(3) provides that the exemption contained in section 23(1) does not apply in certain limited circumstances. I find that no such circumstances arise in this case. I note that the provision of the names of the Officials would not in any way enhance the understanding of the records.

As I have found that section 23(1)(a)(iii) applies to the records, it is not necessary for me to consider section 21(1)(b).

Document numbered 23(9)
Document numbered 23(9) was refused under section 28 of the FOI Act as it contains personal information about people other than the requester. Section 28(5B) of the FOI Act provides that where a record contains joint personal information, i.e. personal information about two or more individuals, personal information about a party other than the requester must, subject to the other provisions of section 28, remain protected. I am satisfied that this record is exempt under section 28 of the FOI Act, and that there is no public interest in its release.

Section 10(1)(a)
As stated above, during the course of the Commissioner's review, this Office was advised that there was a further file on your client at [ ] Prison which had not been discovered previously. The file relates to a period of detention served by Mr. X from [ ] to [ ]. The Department failed to locate this file and now relies on section 10(1)(a) of the FOI Act to refuse access to it.

Adequacy of Search
Section 10(1)(a) of the FOI Act, 1997 provides that:
"A head to whom a request under section 7 is made may refuse to grant the request if
(a) the record concerned does not exist or cannot be found after all reasonable steps to ascertain its whereabouts have been taken, ....".
It has been established that it is not normally the Commissioner's function to search for records. The Commissioner's role is to review the decision of the public body and to decide whether that decision was justified. This means that the Commissioner must have regard to the evidence available to the decision maker and the reasoning used by the decision maker in arriving at his/her decision. The evidence in "search" cases consists of the steps actually taken to search for the records along with miscellaneous other evidence about the record management practices of the public body on the basis of which the public body concluded that the steps taken to search for the records were reasonable.

The role of the Commissioner is to decide whether the decision maker has had regard to all the relevant evidence and, if so, whether s/he was justified in coming to the decision that the record does not exist or cannot be found after all reasonable steps have been taken to ascertain its whereabouts.
Since we were advised of the existence of a further file in September 2007, this Office has been in on-going contact with the Department on the matter and the Department has described in detail the steps taken to search for records. The Department has stated that the file, being an older file, was created under an older database system [ ] which was used until [ ] in some prisons. When your client returned to custody in [ ], a new system was in operation. A new file was created for your client under the new system. I am advised that exhaustive searches have been taken at [ ] prison to locate the old file. I have also been provided with evidence of the searches undertaken. While is regrettable that your client's file cannot be found at this time I am satisfied, based on the evidence before me at this time, that extensive searches have been carried out by the Department and that the Department's reliance on section 10(1)(a) of the FOI Act is justified at this stage in the process.

Decision
Having carried out a review under section 34(2) of the FOI Act as amended, I vary the decision of the Department and decide in accordance with the findings section above.

Right of Appeal
A party to a review, or any other person affected by a decision of the Information Commissioner following a review, may appeal to the High Court on a point of law arising from the decision. Such an appeal must be initiated not later than eight weeks from the date of this letter.